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Decision No. 16,016

Appeal of KINGA TZACH from action of the Board of Education of the Lawrence Union Free School District regarding a school closing.

Appeal of LEILA EL-REZ from action of the Board of Education of the Lawrence Union Free School District regarding a school closing.

Decision No. 16,016

(February 6. 2010)

Minerva & D’Agostino, P.C., attorneys for respondent, Roslyn Z. Roth, Esq., of counsel

STEINER, Commissioner.--In two separate appeals, petitioners challenge the decision of the Board of Education of the Lawrence Union Free School District (“respondent”) to close an elementary school.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioners are district residents whose children attend respondent’s schools.  On March 24, 2009, respondent voted to close Elementary School Number Six (“School Number Six”), consolidate grades one through four in the remaining two elementary schools (“School Number Two” and “School Number Five”)[1], and relocate all fifth-grade students to its middle school.  These appeals ensued.  Petitioners’ requests for interim relief were denied on April 27 and May 7, 2009.

Petitioners generally argue that the board’s decision to close School Number Six must be overturned as arbitrary and capricious and against sound educational policy.  Petitioner Tzach also requests that I award her costs for bringing an appeal and petitioner El-Rez asks that I refer the issue of “irresponsible school consolidation” to the appropriate State Education Department officials.  Respondent contends that its decision to close School Number Six was rational and within its discretion. 

Initially, I must address a procedural matter.  Both petitioners submitted replies to respondent’s affirmations in opposition to their requests for interim relief.  Petitioner Tzach also submitted a reply in response to respondent’s answer and petitioner El-Rez submitted a reply memorandum of law.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Therefore, while I have reviewed petitioners’ replies and petitioner El-Rez’s reply memorandum of law, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in respondent’s pleadings.

Petitioners’ claims must be dismissed on the merits.  Decisions about school district reorganization and the closing of school buildings are within the discretion of a board of education and will not be set aside unless they are shown to lack a rational basis (Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeals of Patashnick and Waters, 39 id. 236, Decision No. 14,225). Pursuant to Education Law §1709(3) and (33), a board of education of a union free school district has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein.  In such cases, a board’s discretion is broad (Matter of Older, et al. v. Bd. of Educ.of Union Free School Dist. No. 1., Town of Mamaroneck, 27 NY2d 333; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850).  Accordingly, a board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeals of Patashnick and Waters, 39 id. 236, Decision No. 14,225).

Petitioners allege that respondent decided to close School Number Six for political reasons and that the decision is contrary to the findings of a demographic study (“the study”) commissioned by the district in 2007.  To support this contention, petitioner Tzach submits an undated email to the superintendent, which was purportedly authored by a representative of the firm that conducted the study, stating, “Using schools 2, 5 and 6 means keeping the three best buildings in use for the foreseeable future.  Closing [School Number] 6 may have a political purpose but it’s the district’s best school in terms of age, facilities and size.”  Respondent claims that the email contains inaccuracies and was not a formal recommendation.  The superintendent explains that the firm was not hired to review respondent’s consolidation plan, but rather to review the district’s existing space and analyze its demographics.

The parties also disagree over the findings of the study.  According to petitioners, the study concluded that the district’s current classroom facilities are not underutilized and that there is no need to close a school.  Petitioners also argue that the middle school does not have the capacity to adequately serve the district’s fifth grade students and that its library and cafeteria are inadequate.  To support this argument, petitioner Tzach cites a statement from the study to the effect that, with remodeling, the middle school could accommodate an additional 160 to 200 students and submits a document[2] which lists the district’s general education enrollment as follows:

Grade 1 – 163 students

Grade 2 - 205 students

Grade 3 – 221 students

Grade 4 – 206 students

Grade 5 - 236 students

Grades 6-8 – 692 students

Petitioners conclude that the size of future fifth-grade classes will exceed that which could be adequately accommodated in the middle school.

According to respondent, the study concluded that the district’s student population will decline by 33 percent by 2017 and that the district’s facilities are underutilized.  Respondent submits a copy of its 2007-2008 New York State District Report Card, which indicates that its K-12 enrollment has declined from 3,332 in 2005-2006 to 3,050 in 2007-2008.  Respondent also cites projected general education enrollment data for the 2009-2010 school year[3] as follows:

Grade 1 - 171 students

Grade 2 – 147 students

Grade 3 – 174 students

Grade 4 – 205 students

Grades 5–8 - 895 students

Respondent explains that, to accommodate fifth-grade students, nine new classrooms are being constructed in the middle school, which was originally designed to accommodate up to 2,000 students.  Respondent argues that the district’s classroom capacity “far exceeds the needs of the district” and that the consolidation “provides efficient use of school district resources without compromising the quality of the education program.”

Petitioners also claim that respondent’s decision to close School Number Six is arbitrary and capricious because School Number Six (1) houses the district’s after-school program, (2) is the district’s newest and largest elementary school and the only one that is accessible for students with disabilities, and (3) has adequate athletic fields in close proximity to the high school.  Respondent explains that the closing of School Number Six will not negatively impact educational programming and asserts that after-school programs will be conducted in the middle school, that a new athletic field will be constructed at another elementary school and that the high school football field will be reconfigured.  While respondent’s director of facilities and operations (“director”) acknowledges that School Number Five has “minimal accessibility at this time,” he explains that capital improvements have been planned to increase accessibility at the remaining elementary schools.

Petitioners further argue that there is no financial need to close School Number Six.  Petitioners note that respondent previously closed School Number One, which was sold in 2006 for approximately $30 million and that, although part of the proceeds from the sale were placed in a capital reserve fund, “no capital improvements have been made with those funds to date.”  To the contrary, respondent submits the minutes from its May 20, 2008 meeting which indicate that approximately $16 million was transferred from the district’s tax-relief fund to its general fund for capital projects including “repairs, refurbishing and replacement of numerous items at all school buildings.”  Respondent also notes that, as a result of its consolidation plan, the district will:

[R]edistribute monies for capital projects from the Number 6 School to the Number 2 and Number 5 Schools, and ... save approximately 1.5 million dollars in operating costs.  The budgetary benefits allow the District to absorb the reduction in State aid and maintain all District instructional and co-curricular activities. 

Petitioners also allege that respondent decided to close School Number Six without adequate consideration and explanation of several factors, including:  public input, transportation, student safety, accessibility for students with disabilities, and the district’s capacity to maintain adequate classroom sizes, library and cafeteria facilities and to meet State physical education requirements.  I note that Education Law §402-a is discretionary and identifies factors to be considered by a board only if it chooses to establish an “advisory committee on school building utilization to investigate the educational impact of such a closing” (Education Law §402-a[1]; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Andrews, et al., 45 id. 248, Decision No. 15,312; Appeals of Patashnick and Waters, 39 id. 236, Decision No. 14,225).  The decision to establish an advisory committee rests solely with the board (Appeal of Hatton, 49 Ed Dept Rep ___, Decision No. 15,954).  When such a committee is established, the statute requires consideration of certain factors, notice and a public hearing (Education Law §402-a; Appeal of Hatton, 49 Ed Dept Rep ___, Decision No. 15,954).  However, even where an advisory committee is established, the ultimate decision regarding closure rests with the board (Appeal of Hatton, 49 Ed Dept Rep __, Decision No. 15,954).

The record contains no evidence that the board chose to form a §402-a committee and was consequently required to follow the specific steps outlined therein.  Moreover, although not required to do so, respondent contends that it held “numerous public meetings wherein the Superintendent presented various options for school consolidation based on the educational needs of the students and the School District’s resources.”  Indeed, petitioner Tzach admits that a presentation was made at respondent’s November 2008 public meeting “in which various new options for school closings were presented to the public.” 

Further, the superintendent asserts in an affidavit that respondent considered projected enrollments, class size caps, school capacities, accessibility, classroom lavatories, program accommodations and budgetary impact.  The board president also explains that a “myriad of factors” were considered by the district, including the declining student population, the underutilization of school facilities and the “structural problems” in School Number 6.  Moreover, the director’s affidavit explains:

[A]lthough it is the newest [elementary school], [School Number Six] is over 50 years old and it is potentially the costliest to maintain.  [School Number Six] has had to have an emergency repair due to a collapsed patio[4] ....

[School Number Six] was built on filled land and on a high water table; the combined effect is that the structure is prone to mold contamination and instability.

As noted above, a board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477). 

As the record in this case well illustrates, school closings and consolidations are difficult for any community; however, a board of education is charged with making those difficult decisions.  While petitioners disagree with the basis for respondent’s decision, the record does not support a finding that such decision was arbitrary and capricious. 

Finally, I note that petitioner Tzach’s request for reimbursement of the costs of bringing her appeal must be denied.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEALS ARE DISMISSED.

END OF FILE

[1] The record indicates that respondent’s pre-kindergarten and kindergarten classes are located in School Number Four.

[2] The document is entitled “Enrollment Summary as of December 22, 2008.”

[3] In its memorandum of law in the Tzach appeal, respondent claims that such data became available on or about April 3, 2009, subsequent to the submission of its answer.

[4] The record indicates that the patio collapse occurred in January 2009.